One of the most significant reasons for misconduct cases not succeeding is that the conduct, which an employee is punished for, was committed by another employee and he or she was not disciplined or given the same penalty for it. In other words, the employer did not apply their workplace policies consistently.

ASSMANG (PTY) LTD T/A KHUMANI MINE v CCMA Mohlala, Teteme, Teteme and National Union of Mineworkers – case no: JR 2416/15 was a review application of an arbitration award for the reinstatement of the employee. The crux of the arbitrator’s award turned on the question of consistency of treatment. Put another way, the application of workplace policies.

The arbitrator found that the employer had inconsistently applied their workplace policies in that it had disciplined the employee and dismissed him for an offence while it had not charged other transgressors who had committed the same offence on the same occasion. The arbitrator did not accept the employer’s evidence that the other transgressors could not have been identified.

In Gcwensha v CCMA & Others [2006] 3 BLLR 234 (LAC) the Labour Appeal Court (LAC) said the following regarding inconsistency, which can be extrapolated to workplace policies:

Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal.

However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression.

The Labour Court found that the arbitrator simply did not consider if an even greater responsibility lay on the employee because of his line management position and – more specifically – his responsibilities as a supervisor under the Mine Health and Safety Act (MHSA) as a regulation.

The Court concluded that the arbitrator overlooked the important issues which distinguished the employee’s conduct from that of his subordinates. The arbitrator did not consider the employee’s alarming indifference to breaching the rule which he displayed in the presence of team when confronted. In addition, the arbitrator did not acknowledge the inappropriateness of acting the way he did given his position, even if he did believe he had been unfairly singled out.

The Labour Court further found that the arbitrator did not take account of material evidence both in relation to his finding that the employee’s dismissal was substantively unfair and that reinstatement was the appropriate remedy, but if he had not discounted or ignored that evidence he could not reasonably have reached the conclusions. The Labour Court concluded the dismissal was fair.

Let Global Business Solutions help you with your workplace policies

You need to have airtight policies in your workplace because, if you don’t, you could find yourself at the end of costly awards. John Botha and the team are on hand to help you draft policies for your workplace. Follow this link to contact him.